Constitution 201: The Transformation of America’s Political Institutions

This lesson is taught by Dr. Kevin Portteus, Associate Professor of Politics at Hillsdale College, and faculty advisor for Washington-Hillsdale Internship Program. Dr. Portteus teaches courses in American political thought, and American political institutions. He is also a visiting graduate faculty member at Ashland University. Dr. Portteus’ book, Executive Details: Public Administration and American Constitutionalism, is under review for publication. He received his BA from Ashland University, his MA and PhD in Politics from the University of Dallas. Those interested in seeing and hearing this lecture, or any of the others in the series, may register at constitution.hillsdale.edu. There is no fee.

Progressives divide government into two essential parts: Politics, which is representation of the will of the people; and Administration, which is the development and implementation of civic policies and programs. When we are taught about the Progressive Era of the late nineteenth and early twentieth century in our high school history classes, there is focus on Progressive reforms that made government more directly representative: direct election of senators; initiatives and referendums; and party primaries. This brought politics closer to the people and improved their ability to express their will for change—especially progressive changes beyond Constitutional limitations. Yet, Progressives’ more important contribution to American government was the concept of the administrative state, where bureaucrats, relatively free from political control, would ply their specialized expertise in the implementation of that popular will. The Progressive vision was a politics of broad social policy (“We want clean water and air!”), resulting in declarations of objectives from representative government (a Clean Air and Clean Water Act specifying the broad objectives and not much more), and culminating in specialized expert administrators who would write the actual substantive rules and regulations to achieve those objectives. This bifurcation could not help but reduce consent of the governed as to new institutions staffed with officials operating largely outside political control, a result desired by the Progressives. And over time, even the will of the people, broadly expressed in elections, became of less importance to the administrative state than doing what was good for the people, whether they wanted it or not.

Today, the bulk of decisions made by government that affect our lives come from a cadre of specialized experts who operate outside the effective control of either the governed or their elected representatives. This has led to a massive expansion of government power over the governed, and to a radical rearrangement of how our governing institutions actually work. This is justified on the grounds that we live in a mass industrial society that requires new ways of operating that fundamentally differ from provisions of the Constitution. Teddy Roosevelt laughed off concerns about tyranny of the majority, saying that we might better be concerned about tyranny of the minority and meeting the new threats to our democracy—concerns that the creaky machinery of the Constitution might not be able to address. From Woodrow Wilson’s “The New Freedom”: “We are coming to realize that life is so complicated that we are not dealing with the old conditions, and that the law has to step in and create new conditions under which we may live, the conditions which will make it tolerable to live.”

It was no longer a good thing to suffer a government that was designed to be slow to change so reason rather than passions was more likely to underlie change. Even today, modern commentators lament that what is left of separation of powers renders substantive change impossible unless all branches are held by one party—and difficult even then. They must have missed the thousands of new rules and regulations that ensnare us every single year. Of course, these don’t come from Congressional process, but rather from the administrative state. Herbert Croly, founder of The New Republic, said in 1914 that revision of the Article V amending clause is the most essential reform to promote democracy, to achieve Progressive change, and to overcome a Constitution “frozen in place.” And yet, today we have his administrative state, largely accomplished without Constitutional amendment. Progressives have been quite successful in changing our political institutions for over a century now. It is useful to consider how our main political institutions, Congress, the Presidency, and the Federal Judiciary, have changed as a result of the administrative state.

Article I, Section I of the Constitution reads: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. The people loan their sovereignty to a Congress of their representatives. Nowhere in the Constitution is there any provision allowing Congress to delegate its legislative power, and for many years this was not permitted. The Founders certainly would have never accepted such delegation. They had been warned in their readings of John Locke of the dangers of such a practice. If I permit someone to do something on my behalf, the permittee has no right to delegate that responsibility unless I have agreed to let him do this. The Constitution is the permission document, and delegation of authority outside its specific provisions was neither permitted nor favored by its drafters.

But the Progressives knew better. Legislators are biased by their interests, and unable to understand the complexities involved in rule making for a modern society. Since they generally lack the specialized expertise to address modern problems, all a legislator should do, individually or as a collective, is make declarations about the will of the people—a political function in the Progressive sense. Ideal social legislation expresses broad objectives as to the results desired, and leaves it to the specialized experts in a commission to determine the best rules, regulations, and tasks to implement solutions—an administrative function in the Progressive sense. Say that the Congress expresses the public will for clean air in a Clean Air Act. It should be left to scientists and climatologists to determine safe levels of pollutants and ways to bring our air to those levels. The rule making accomplished by those worthies has the force of law even though not made or even adopted by Congress. The Supreme Court was complicit in the acceptance of delegation of legislative power. A standard was set in Chief Justice William Howard Taft’s concurring opinion in J.W. Hampton & Co. v United States (1928): So long as Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” So as far as a former President, generally considered a “conservative,” was concerned, as long as Congress was relatively clear about what it wanted to accomplish, it could delegate all the rule making (lawmaking) as it desired. Some six decades later, a 1989 Supreme Court decision even restated the principle in terms to warm the hearts of Progressives, as there were references to ever-changing times, and to more technical and complex matters, and to the very impossibility of Congress to do its job without delegation of authority under broad general directives. The only dissenter was Justice Scalia who noted that the Court was enabling Congress to create an infinite number of “junior varsity Congresses.” In only one way was he wrong: the Court had enabled that for years.

So what does Congress actually do in this modern, complex society that is far beyond the ken of mere mortals—other than bureaucrats, of course? It continues to pass broad laws with thousands of pages that, often with great specificity, leave all the important decisions to administrators. And it engages in massive oversight operations to monitor bureaucratic activities. Bureaucrats pretend to be responsive because Congress does continue to control funding. They know that any legislative bar to their actions will require that slow Constitutional action—in this case to un-do arbitrary government action rather than prevent it from occurring in the first place. So, our Congressional representatives go to Plan B, constituent service. Your representative is now not a lawmaker, but rather an ombudsman who wades through the bureaucratic morass created by Congressional delegation and tries to get you relief from some bureaucratic excess. And if he is successful in this quest on your behalf, you are so grateful that you (and those who know how helpful he has been) will vote for him in the next election, often regardless of any ideological differences between you. Constituent service is the ultimate good for a member of Congress. It wins much more praise than an actual vote on the real substance of a tough issue. So, the administrative state helps a member’s self-interest by divorcing the member from his duty to make good laws.

The administrative state also has adverse effects on the institution of the Presidency. In the Progressive view, the bureaucrat needed to be free not only of Congress, but also of the President. He had to be independent of political pressures as exercised by either branch in order to do his job in an expert and impartial manner. Herbert Croly again: “Law depends for its success upon the ability and disinterestedness with which the law is administered.” At the very beginning of the Republic, the Washington administration faced the question whether the President could fire as well as hire executive staff. It was early seen that a unitary executive with responsibility for implementation of the laws must be able to control his staff, and that requires the power to terminate those who are not carrying out the law as directed. The model of the Progressives was the independent commission. Congress would delegate the decision making power, and the President would make the appointments (with advice and consent of the Senate if required). Then, the commission would act independently of the political branches, and its officers would not be subject to Presidential termination. It seems an unusual model that would separate the President from effective control of the execution of law, but it was clearly in line with the Progressive desire to separate politics from administration. The Supreme Court was once again complicit with its 1936 decision in Humphrey’s Executor v U.S. FDR removed Humphrey from the Federal Trade Commission because of insufficient zeal in implementing New Deal preferences. The court ruled that the President could not terminate officials of a Congressionally created “quasi-legislative, quasi-judicial” body except under conditions of the statute. The statute allowed the President to terminate for “inefficiency, neglect of duty, or malfeasance in office,” but not for purely political reasons. This decision was rendered late in the period of Court opposition to New Deal legislation, and may have been taken out of spite. Its result was to endorse the idea that removal of executive branch staff was not purely in the hands of the President. It didn’t even help Humphrey, who had died before the case was decided.

The Progressives had another set of purposes for the Presidency. The Founders saw the President as responsible for execution of the laws Congress made. Wilson saw the President as legislative leader, not an executive carrying out existing laws but a representative of the whole nation who coalesces the public will around important social legislation. This is far from the intent of the Founders, although it is the consensus view of both Progressives and conservatives today. We judge a President by his “program,” rather than by his skill in executing the laws—a power far more circumscribed than in the early Republic.

Presidents have fought against the independence of the commission and the bureaucracy in general. (Dr. Portteus didn’t mention Civil Service reform that has constrained Presidential control of personnel in the cabinet departments, which is at least as important an issue.) White House staffs have mushroomed, and there has been continuing expansion of political appointments in the administration of the cabinet departments. President Reagan appointed the first White House “czar” to oversee the operations of the multiple agencies involved with the problem of drug abuse. It is now a system that has grown to dozens of czars for every conceivable purpose. It is interesting and instructive to recall that President Lincoln was served by precisely one White House assistant—oh, and one more he borrowed when the work for his assistant became too much. Since the Congress was unwilling to authorize telegraph service in the White House during the Civil War, Lincoln had to walk down to the War Department to get the military news. And yet he was able to execute a “complex” and “modern” war under Constitutional provisions.

The role of the federal judiciary has not emerged unscathed from the Progressive challenge. Progressives appreciated the relative permanency of tenure and independence granted by the Founders to ensure impartiality in deciding cases. It was this very freedom from politics that was desired for administrators. Progressives were more than willing to accept the Supreme Court exercising its specialized expertise as the final word on the Constitution, but only on condition that the Court also function as an agent of progress. This was the source of the idea that we must have a “living Constitution” that keeps up with changing times and circumstances by applying wise if not clearly stated intents of that document to the modern context. Hence penumbras and emendations. In a 1985 symposium, Justice Brennan stated it this way: “For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

So we come to the heart of the Progressive concept of the administrative state. It is not merely expertise we seek in our bureaucrats (or our judges), but the right kind of world view. If you work for the EPA, you must be an environmentalist or else you might subvert the work that must be done to carry out the Clean Air Act. It is not impartiality and a balancing of interests that is sought for the bureaucracy, but rather a dedication to Progressive views of social progress. As a Progressive might express it, “general good faith” is just as important as specialized expertise.

The Progressives supported political system reforms to better allow the public to express its will. This was particularly useful at a time when there was much support for expansion of government action, and roadblocks from the Courts. But the real substantive power was to lie in a bureaucracy independent of the people’s representatives. The Constitution established a system where all government officials were responsible directly or indirectly to elected authority. The Progressives believed we expected too much to be settled by votes, that we needed independent authority to settle matters requiring specialized expertise. At the very time they were expanding the concept of representation, they were removing more and more decision making from those representatives. Politics would set the broad social goals, while independent administrators would make the decisions. Consent of the governed? Not in the substance of policy. The great paradox of Progressivism: To do the will of the people, administrators must be substantially independent from the people.

So what happens when the political process yields a result with which Progressives disagree? Well, in that case perhaps there shouldn’t even be consent of the governed in the expression of the public will. A recent example will illustrate this. President Obama, wedded to Progressive policy, attempted to establish Cap and Trade as a way of reducing carbon emissions. Even with an overwhelmingly Democrat Congress, he could get only a small majority in the House—and the filibuster proof Senate wouldn’t even take it up. In 2010, Congressional elections demonstrated public opposition to Obama policies, most certainly including Cap and Trade. After the election, President Obama noted that there were “many ways to skin that cat,” including regulatory imposition of carbon emission reductions that had been rejected both by a Democrat legislature and by voters in the recent election. So, rather than accept the political will of the people in broad matters of public policy, the President threatened to unleash regulators to do what the people should want rather than what they do want. After all, the people’s votes are based on short run self-interest and lack of understanding in complex matters, while the administrative state always acts in the public interest through the application of specialized expertise.

It is Fantasyland to believe that bureaucrats always act in the public interest and never in self interest. Regulatory capture by interest groups, both those evil-doing business interests and those public spirited citizen’ groups (to put the Progressive formulation on it), is not unknown. Bureaucracy by its nature wants to expand, and it is in its interests to practice mission creep. The EPA pushed the definition of wetlands protection under the Clean Water Act so far that it prohibited the building of a residence on a lot that was well away from a lake and had no observable surface water on the property. In Sackett v EPA, the Supreme Court rapped EPA’s knuckles, not for expanding the coverage of the act, but for denying the Sacketts a court proceeding to adjudicate the matter.

The very expansion of government in service to the Progressive vision may have created a muscle-bound creature that is ever less able to solve problems. The very complexity of our society may well limit the ability of a governing body to deal with it. Certainly, modern Progressives are frustrated. Thomas Friedman wrote in the New York Times that there are advantages in one party autocracies ruled by enlightened people, like China, so politically difficult but necessary policies can be moved forward into the twenty-first century. In other words, if you were a rational person, you would realize that your betters are doing what is good for you. You would agree to counter the gridlock of our political institutions by making them less democratic, relying more on automatic and less popularly controlled decisions from the bureaucracy.

The Founders understood the benefit of freedom in achieving social progress. Ask yourself how willing you would be to allow a bureaucrat expert to come into your home to tell you how to better run your household. You would undoubtedly believe that you would make better decisions for yourself, with your interests on the line. And yet we allow bureaucrats to intrude themselves into decisions that should be made by individuals, or by we the people through our elected, and accountable, representatives. Complex societies are even less susceptible to effective centralized rule than are simpler ones. We are in the process of rediscovering this fact of reality once again. We can only pray we are not too late.

Stephen Zierak, CPCU/ARM, graduated from Boston University with a BA in Political Science in 1969. After a forty year career in property casualty insurance underwriting, Mr. Zierak retired as a Vice President of Swiss Re America in 2010. At that time, he relocated to Hawaii, a move he had always wanted to make, but had delayed due to lack of appropriate professional opportunities here. Mr. Zierak plans to continue his studies in Political Science, never really abandoned even during his professional career, and to write on matters of public policy. Recently, he produced for Grassroot Institute summaries of Hillsdale’s ten part internet course on our Constitution. Stephen Zierak is married to the love his life, Teodora, and they reside in Honolulu.

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